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«OFFICIAL OPINIONS OF THE ATTORNEY GENERAL - 1918 138. State Assayer and InspectorFees. The State Assayer and Inspector cannot charge less than 25 ...»

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Section 3 of article 19 of the Constitution provides that if a majority of the qualified electors voting upon an initiative measure shall approve of such measure it shall become a law and take effect from the date of the official declaration of the vote.

In section 26 of the Act relating to elections (Stats. 1917, p. 367) it is provided:

and on the third Monday of December succeeding such election the Chief Justice of the Supreme Court and the Associate Justices, or a majority thereof, shall meet at the office of the Secretary of State, and shall open and canvass the vote * * * for and against any questions submitted.

The third Monday of next December, the day on which the votes will be officially opened and canvassed, comes on the 16th day of that month. The official declaration of the vote will, therefore, be made on December 16, 1918.

It is from the date of such official declaration that an initiative measure receiving a majority of the votes cast becomes a law and takes effect.

“From the date” was said by Lord Mansfield, in Pugh v. Duke of Leeds, Comp. 714, to be synonymous with the phrase “from the day of the date.” (Kim v. Osgood’s Admr., 19 Mo. 60;

Oatman v. Walker, 33 Me. 67; Bigelow v. Willson, 18 Mass. 485.) The day of the date in this particular case is the 16th, because “date” means the same in its legal as in its ordinary sense and imports the day of the month, the month and the year. (Heffner v. Heffner, 48 La. Ann. 1088.) A “day,” in legal consideration, constitutes twenty-four hours, extending from midnight to midnight. (Muckenfuss v. State, 55 Te. Cr. R. 229, 116 S.W. 51, 20 L.R.A.n.s. 783, 131 Am. St.

Rep. 813, 16 Ann. Cas. 768; State v. Richardson, 16 N.D. 1, 109 N.W. 1026; Cheek v. Preston, 34 Ind. App. 343, 72 N.E. 1048; 2 Words and Phrases, 1834.) And fractions of a day in statutes or legal proceedings are not generally considers. (Towell v.

Hollweg, 81 Ind. 154; Brainard v. Bushnell, 11 Conn. 16; Cummings v. Holmes, 11 Ill. App.

158; Inhabitants v. Inhabitants, 62 Mass. 371.) The word “from,” in speaking of time from a certain day, generally excludes the day to which it relates. (People v. Hornbeck, 61 N.Y. Supp. 978, 30 Misc. Rep. 212; Bigelow v. Willson, 18 Mass. 485; Peables v. Hannafoid, 18 Mass. 106; Kendall v. Kingsley, 120 Mass. 94; Rand v.

Rand, 4 N.H. 267.) In view of the foregoing, it is our opinion that the initiative prohibition measure will become a law and take effect at 12:01 o’clock a.m., December 17, 1918.

Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

244. Prohibition—License—Refund—Initiative Prohibition Law.

A license may recover back the unearned license fee where the license has been revoked wholly by reason of change in governmental policy by the State, and where there is no fault on the part of the licensee.

The initiative prohibition law takes effect at 12.01 a.m., December 17, 1918.

Counties and municipalities should make refund for the unearned portion of each license after the taking effect of the law upon presentation of proper bills.

CARSON CITY, November 26, 1918.

HON. G.J. KENNY, District Attorney, Fallon, Nevada.

DEAR SIR: Your recent letter relative to the initiative prohibition measure duly received.

The questions therein asked will be taken up and answered in their order, as follows:

1. Is any refund legally due and payable to the holder of a liquor license, state and county, as a consequence of the “dry” initiative measure being successful at the recent election?

Although there are some decisions to the contrary, principally among which might be mentioned Fitzgerald v. Witchard, 130 Ga. 552, 16 S.E. 227, 16 L.R.A.n.s. 519, and Peyton v.

Hot Spring County, 53 Ark. 236, 13 S.W. 764, the great weight of authority is to the effect that a licensee may recover back the unearned portion of the license fee where the license has been revoked wholly by reason of a change in governmental policy by the State, and where there is no fault on the part of the licensee. (Pearson v. Seattle, 14 Wash. 438, 44 Pac. 884; Martel v. East St. Louis, 94 Ill. 67; Hirn v. State, 1 Ohio St. 15; Sharp v. Cartage, 48 Mo. App. 26; Marshall v.

Snediker, 25 Tex. 460, 78 Am. Dec. 534; Auburn v. Mayer, 58 Neb. 161, 76 N.W. 462; Allsman v. Oklahoma City, 21 Okl. 142, 95 Pac. 468, 16 L.R.A.n.s. 511, 17 Ann. Cas. 184.) In our opinion, therefore, each of the various license holders will be entitled, when his license become void by reason of the taking effect of the initiative prohibition law, to a refund for the unearned portion of such license.

2. If a refund is due, when does it begin to run?

The initiative prohibition law will take effect at 12:01 o’clock a.m. on December 17, 1918.

(Atty.-Gen. Opin. Nov. 23, 1918.) The counties and municipalities should make refunds for the unearned portion of each license after taking the effect of the law, upon the presentation of proper bills. So far as the State is concerned, no refunds can be made prior to legislative action, as no money can be drawn from the state treasury but in consequence of appropriations made by law. (State v. Eggers, 29 Nev.

469; State v. La Grave, 23 Nev. 125.) Yours very truly, GEO. B. THATCHER, Attorney-General.





BY WM. McKNIGHT, Deputy.

245. Prohibition—Initiative Prohibition Act—Liquors, Storage Of.

The initiative prohibition measure does not prevent one, prior to midnight on December 16, 1918, from storing intoxicating liquor in his home for his own future personal use or from personally using it after such date; such liquor so stored before the law takes effect cannot legally be given or furnished to another after the law becomes effective.

CARSON CITY, November 29, 1918.

HON. E.F. LUNSFORD, District Attorney, Washoe County, Reno, Nevada.

DEAR SIR: In response to your oral request for an opinion as to whether or not a person may, under the new prohibition law, store intoxicating liquor in his home for his own consumption, will say that there is nothing in the initiative prohibition measure which prevents one, prior to midnight on December 16, 1918, from storing intoxicating liquor in his home for his own future personal use, or from personally using it after said date; but such liquor so stored before the law takes effect cannot be legally given or furnished to another after the law becomes effective.

Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

246. Prohibition—Initiative Prohibition Law—Intoxicating Liquors.

After the prohibition law becomes effective, it is not unlawful for one to have intoxicating liquor in his house for his own personal use, provided such liquor is placed in his home prior to the time the law takes effect.

Persons invited to the home as guests cannot legally be served with intoxicating liquor.

The prohibition law will take effect at 12:01 a.m., December 17, 1918.

CARSON CITY, November 29, 1918.

HON. C.P. FERREL, Sheriff, Washoe County, Nevada.

DEAR MR. FERREL: Replying to your recent letter, relative to the initiative prohibition

measure, will say that your various questions, in our opinion, should be answered as follows:

1. It will not be unlawful, after the prohibition law becomes effective, for one to have intoxicating liquor in his home for his own personal use, provided such liquor is procured and placed in such home prior to the time that the law takes effect.

2. Friends invited to the home as guests cannot legally be served with intoxication liquor.

3. The prohibition law will take effect at 12:01 a.m. December 17, 1918.

Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

247. Public Schools—SchoolTeachers—Salaries—Quarantine—Epidemic.

Teachers should be paid full salaries for one thirty-day intermission caused by epidemic, even though the schools be actually closed for a longer period.

If the school board, in good faith, reopens the school before the expiration of thirty days from the date of closing and later finds it necessary to again close them for a period not exceeding thirty days, the teachers are entitled to their full salaries.

But, if the school board reopens a closed school and later closes it for the apparent purpose of attempting to avoid the letter of the statute, the teachers are entitled to salaries for but one thirty-days intermission.

CARSON CITY, December 10, 1918.

MR. THOMAS E. POWELL, District Attorney, Humboldt County, Winnemucca, Nevada.

DEAR MR. POWELL: We wish to acknowledge receipt of your letter of the 9th instant, in which you sate that many school boards, in order to be able to pay the teachers for the full time during the period of the epidemic of influenza, have paid them for a thirty-day intermission according to law and then convened the schools for one day, when they were again closed, the purpose being to avoid the statute and pay the teachers for successive thirty-day intermissions.

You ask whether such procedure violates the law.

By section 104 of the Act concerning public schools (Stats. 1917, p. 398), it is provided:

A school month shall consist of four weeks of five days each, and teachers shall be paid only for the time in which they are actually engaged in teaching;

provided, that when an intermission of less than six days is ordered by the Trustees no deduction of salary shall be made therefor; and provided further, that when on account of sickness or epidemic a longer intermission is ordered by the Board of School Trustees or by a duly constituted Board of Health, and such intermission or closing does not exceed thirty days at any one time, there shall be no deduction or discontinuance of salary or salaries therefor. The term “teacher,” as used in this Act, shall be understood to mean teachers, principals and superintendents of the elementary and secondary schools of this State.

This section specifically provides that there shall be no deduction or discontinuance of salary when the intermission or closing, on account of an epidemic, is duly ordered and does not exceed thirty days at any one time.

Literally construed, the statute would prevent a teacher from securing any salary for any part of a period of intermission, if the entire period exceeded thirty days; literally construed, it would give a teacher full salary for an entire period of intermission lasting several months, if such period was broken every month by one day’s teaching. It is readily seen that the literal meaning is absurd and, if given effect, would work injustice, depending entirely upon the will or caprice of the school board. Under such circumstances, it is universally held that the spirit or reason of the law will prevail over the letter. In our opinion. the spirit and reason of this particular statute

demands the following conclusions:

Teaches should be paid full salaries for one thirty-day intermission caused by an epidemic, even though the schools be actually closed for a longer period.

If the school board, in good faith, reopens the schools before the expiration of thirty days from the date of closing and later finds it necessary to again close them for a period not exceeding thirty days, the teachers are entitled to their full salaries.

But, if the school board reopens a closed school and later closes it for the apparent purpose of attempting to avoid the letter of the statute, the teachers are entitled to salaries for but one thirtyday intermission.

Yours very truly, GEO. B. THATCHER, Attorney-General.

BY WM. McKNIGHT, Deputy.

248. Prohibition—Initiative Prohibition Act—Druggists—Intoxicating Liquors.

(1) Druggists may carry in stock and sell for medicinal purposes, upon prescription, any United States pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, which includes whisky, brandy, and many other of the most intoxicating liquors.

(2) Druggists may carry in stock and may sell for medicinal purposes upon prescription and for mechanical, pharmaceutical and scientific purposes, upon affidavit, pure grain alcohol.

(3) Druggists may carry in stock and sell, without a prescription, any preparation which is exempted by the provisions of the national pure food law, if the sale of same does not require the payment of a United States liquor dealer’s tax.

CARSON CITY, December 14, 1918.

HON. W.E. BALDY, District Attorney, Ormsby County, Carson City, Nevada.

DEAR SIR: We are in receipt of your recent request for an opinion upon the following

questions:

1. Can a druggist have in his store whisky, brandy, wine, etc., for use of physicians’ prescriptions?

2. Can a druggist have in stock and sell, without physicians’ prescriptions, patent medicine containing alcohol, or such articles as bay-rum or witch-hazel?

The initiative prohibition measure provides that a common carrier or transpiration company may bring or carry into this State, or carry from one place to another within the State, pure grain alcohol and wine, and such preparations for druggists as may be sold by them for the special purposes and in the manner as set forth in section four, and that druggists may receive and possess the same.

Section 4 of the Act reads in part as follows:

The provisions of this Act shall not be construed * * * to prevent the sale and keeping and storing for sale by druggists of pure grain alcohol for mechanical, pharmaceutical, medicinal and scientific purposes, or of wine for sacramental purposes, by religious bodies, or any United States pharmacopeia or national formulary preparation in conformity with the Nevada pharmacy law, or any preparation which is exempted by the provisions of the national pure food law, and the sale of which does not require the payment of a United States liquor dealer’s tax.



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